Renée Loth

Clean elections take a hit

By Renée Loth
July 9, 2011

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THE INFLUENCE of money in politics was back in the news last week, when the US Supreme Court struck down parts of an Arizona campaign-finance law that tried to level a playing field made impossibly steep for candidates who don’t enjoy private fortunes or corporate largesse. The Court, like Congress, has abandoned ordinary Americans who are being drowned out by the oceans of cash washing through the political system. They may have no choice but to try amending the Constitution next.

Arizona’s public-financing law seemed to have everything going for it: participation was voluntary; it was enacted overwhelmingly by the people in a public referendum; it was popular with politicians of both parties; it was aimed at combating corruption - a “compelling interest’’ allowed in earlier Supreme Court decisions on campaign spending.

Still, the court ruled 5-4 against the law, which awarded candidates who agreed to limit their spending with matching funds if an opponent exceeded an established spending cap. Chief Justice John Roberts, who wrote the opinion, reasoned that candidates with access to lots of campaign cash might limit their own spending to avoid triggering matching funds for the other guy. And since this court (like others before it) has established that money equals speech, that would unconstitutionally gag the wealthier party in the race.

Never mind that the actual effect of the Arizona law - used in elections there for the past decade - has been to increase political speech by encouraging more candidates to run. This court has fixated on a radical theory of the First Amendment that not only equates money with speech but, in last year’s notorious Citizens United decision, extends free speech rights to corporations.

In his Arizona opinion, Roberts sneered at the state’s efforts to make politics a fairer fight. “In a democracy,’’ he wrote, “campaigning for office is not a game.’’ Precisely. And this court’s rulings repeatedly throw the game to the kid who already has the most marbles.

Since even modest efforts to limit corporate money in elections have met with such frustration, some advocates have taken the grave step of promoting an amendment to the US Constitution, to establish once and for all that corporations do not enjoy the same rights as people. One such group, Free Speech for People, has proposed an amendment that reads, in part: “We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.’’ It goes on to define “natural person’’ as explicitly not including corporations. Ten Massachusetts towns, from Chatham to Williamstown, have passed resolutions supporting the amendment, and several states have resolutions pending.

I am leery of constitutional amendments, especially those that get uncomfortably close to the Bill of Rights. The process is long and complex, and I quake at the damage Congress could do if the document is exposed to the politics of a Constitutional convention. But John Bonifaz, the director of Free Speech for People (and a MacArthur “genius’’ who has argued campaign-finance cases before the Supreme Court) notes that citizens have been driven “to overturn an egregious Supreme Court ruling’’ by amendment seven times in US history. That’s how we got the 14th Amendment, which overturned the Dred Scott decision, and the 24th, which overturned the poll tax.

Michael Waldman, director of the Brennan Center for Justice at New York University, agrees. “The First Amendment is not a hostage note,’’ he wrote recently. “Fealty to a narrow ideology of free speech ought not threaten democracy or workable governance.’’

A constitutional amendment feels like a last resort. But maybe all the other resorts have failed.

I said earlier that campaign finance is back in the news. But in truth, money in politics is never out of the news. It is in last month’s story about formaldehyde being added to the government’s official Report on Carcinogens after years of delay because of lobbying from the chemical industry. It is shot through the story of the Big Branch mining disaster, where executives from Massey Energy spent lavishly to elect congressmen and judges, and then hid deadly hazards from inspectors. It is behind the country’s inability to design a working, affordable health care system.

The story of unchecked corporate power is everywhere. Somebody needs to write a new ending.

Renée Loth’s column appears regularly in the Globe.